Interesting news... I suspect if the Monday announcement happens, as many expect, that it will be "retirement effective January 21" or something to that effect. Thanks J!

Hey, Tim, question:

Is a decision such as Bush vs. Gore (2000) grounds for impeachment of a Justice? If so, is there a statute of limitations on that kind of thing?

As we discovered during the Clinton impeachment, the definition of "high crimes and misdemeanors" is essentially whatever the House thinks is appropriate. If anyone has read Alan Dershowitz's excellent book, Supreme Injustice: How the High Court Hijacked Election 2000 they see what could be a basis for such action. Dershowitz lays out a fairly convincing case that the majority Justices went against the logic of their own previous equal protection rulings in order to achieve the outcome. Very few of my fellow election lawyers believe this case was soundly reasoned.

I do not believe any Justice will be (or should be) impeached. The case is wholly circumstantial and I think history will judge them more harshly than it would were there a failed impeachment or trial. I do, however, believe that any elevation nomination of Scalia, Thomas, O'Connor or Kennedy would very much focus on the issue.

Did you see Landauer's column this morning? He offered an interesting reason why Dubya might NOT put a hardcore pro-abortion nominee forward: because getting rid of Roe would be a massive blow to the Republican Party. He's right, but I don't know if that says much about whom Dubya will select.

My guess is that it will be an extreme social conservative who has close ties to the Bush dynasty.

Jeff - I think the GOP would cease to exist if it ever followed through on its anti-Roe platform. At some point, the pro-life/anti-choice folks have got to understand this... I cannot believe Karl Rove and the rest of the behind-the-curtain types seriously consider what could only be the demolition of the party. I think there are dozens of other issues they'd love to bring down... environmental regulation, consumers' rights, affirmative action, etc etc. That is what the 5th vote represents.

Wharf - I think Reid may be on to something... Justice Scalia, according to many reports, has a style that is so divisive that it sends O'Connor and Kennedy to the left in some circumstances. The Chief Justice has some power that an Associate Justice does not, most notably the ability to assign cases when he or she is in the voting majority. Other than that... not much. If the President is largely going to get his way in this, why not give him something that he thinks is good, but might be better overall for progressives? That Sen. Reid may be crazy like a fox...

Stay tuned everyone... we'll see if the rumors hold on Monday.

Rehnquist an "arch-conservative"? He may have been when Nixon put him on the bench, but he's third from the right these days. Bushies Scalia and Thomas make "Renchburg," as Nixon called him, look positively moderate.

Bush has not come to the middle on anything, and he's certainly not going to do so with his first Supreme Court nomination. And he's got 55 easy votes in the Senate, with plenty of moves available to suck in wayward Dems, so he can do whatever he wants.

Time for progressives to gear up? Gear up for what? Howard Dean in 2008? That's the next chance the progressives are going to have to say anything meaningful about who's on the federal bench.

The Court doesn't always end up doing what the President thinks it will. Eisenhower cursed Earl Warren until the day he died - thinking he was appointing a "conservative" CJ, but the Warren Court turned out more "activist" (also known as conservative with 5 votes) than anyone could have predicted.

The Rehnquist Court hasn't been awful (except for Bush v. Gore, which they should have stayed out of entirely), it just hasn't been loudly touted as activist for our side. But it has protected abortion rights, environmental regulations, and a number of other things that lefties dig. And it's done so in the slow, methodical, limited way that courts are supposed to do things.

The law is inherently reactive, and will always lag behind whatever social storm is fomenting (there are a few exceptions, and these are the cases that the general public has heard of). A reactive court is a good thing - the slow and limited nature of law allows it to be a moderating force. This also makes it less effective as a social change agent - which we lefties thought was a bummer when we were in charge, but might be a good thing now.

As for Scalia, I don't particularly like him, but he is very smart (as opposed to Thomas, who is the only Justice lacking an advanced law degree). Even when I don't agree with Scalia, I can see how his arguments make logical and jurisprudential sense - I just would have emphasized different parts of the argument than he does. I don't see him pushing his jurisprudence as far as it would need to be pushed in order to impose an across-the-board uber-conservative agenda.

A brief note on abortion, from Casey v. Planned Parenthood (1992). The Court says, "19 years after our holding that the Constitution protects a woman's right to terminate her pregnancy in its early stages, Roe v. Wade, 410 U.S. 113 (1973), that definition of liberty is still questioned. Joining the respondents as amicus curiae, the United States, as it has done in five other cases in the last decade, again asks us to overrule Roe. ... After considering the fundamental constitutional questions resolved by Roe, principles of institutional integrity, and the rule of stare decisis, we are led to conclude this: the essential holding of Roe v. Wade should be retained and once again reaffirmed." That's tough language to get around.

Regardless of who pops up as CJ, or who replaces the other justices that are aged and ailing, the Court will likely not turn into a crazed right-wing mob. This is not to say that it's not important - the Supremes and all the federal courts do have an affect on our rights and remedies in a potent and lasting way. My point is that a few new faces on the Court will not mean the end of the world.

Anne, your post reminds me of the line attributed to Eisenhower when asked if he made any mistakes as president. "Two, and they are both sitting on the Supreme Court."

I think a shift of one progressive to a conservative vote would make a substantial difference on some issues. Take a look at the Alliance for Justice film Just One Vote for some background on what I have been talking about here.